Saturday, November 22, 2014

We Don't Need Private Attorneys General to Combat Unlicensed Dentistry

Bui v. Nguyen, No. H039310 (D6 Oct. 28, 2014)

Plaintiff won a $200k verdict against a dental assistant who was masquerading as a dentist for negligently performed dental work. He also obtained a permanent injunction requiring the defendant to identify herself as a dental assistant in her advertising and to refrain from wearing a white dental lab coat. Casting the injunction as a public service, plaintiff sought attorneys’ fees under the private attorney general provision, Code of Civil Procedure § 1021.5. The trial court awarded the fees, but at a significantly reduced rate. 

The court of appeal reverses. An award of fees under § 1021.5 is appropriate when (1) plaintiff enforced an important public right; (2) the litigation conveyed an important benefit on the public; (3) private enforcement is necessary; and (4) private enforcement is burdensome, such that it warrants subsidizing successful plaintiffs

Here, the court finds that the third element is not satisfied. Generally private enforcement is necessary when public enforcement is unavailable or inadequate. The paradigmatic cases tend to involve government defendants because the government is unlikely to enforce the laws it is breaking against itself. When a defendant is a private party, however, the plaintiff’s efforts to get the pertinent regulators involved is relevant to the adequacy of public enforcement. Here, plaintiff did not submit any evidence that there had been efforts to get public regulators like the California Dental Board or the state AG to bring enforcement actions regarding the practice of unlicensed dentistry or false advertising about dental businesses. Nor did he provide any evidence that these regulators routinely ignore citizens’ complaints over these issue. In the absence of evidence of insufficient public enforcement, the trial court abused its discretion in awarding fees under § 1021.5.


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